Stanford Law Faculty on Justice Scalia’s Legacy

Supreme Court Justice Antonin Scalia’s untimely death has triggered memories as well as debate. The conservative justice, who was a visiting professor at Stanford Law School in 1980-81, was known for his provocative opinions and sharp wit. Here are some thoughts on his legacy from professors at Stanford Law School.

Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic

Justice Antonin Scalia was an influential justice not because he was right, but because he could write. The force of his personality and the power of his pen changed the terms of central legal debates—for example, on how to read a statute or to interpret the Constitution. Attorneys now spend more time plumbing dictionaries and 18th-century treatises and less time mining legislative history.

As the leading judicial exponent of originalism, Justice Scalia repeatedly claimed that originalism makes the answers to the questions that most divide the Supreme Court “easy.” He was wrong. The most important cases at the Court require judgment, and that judgment demands serious thought about how a document originally drafted in the late 18th century should be understood today.

Justice Scalia’s central innovation was to argue for reading the Constitution’s words as they were understood by “ordinary citizens in the founding generation.” But the answers that method would produce, if rigorously applied, would be unpalatable to most Americans today. Ordinary citizens in 1868 did not think that “equal protection” prohibited school segregation or government-sponsored sex discrimination. (Indeed, the same 14th Amendment in which the phrase “equal protection” appears also assumed the right to vote could be limited to men.) That is why Justice Scalia conceded that, “in a crunch,” even his originalism might prove “faint-hearted.” Our Constitution has survived because its meaning and application have adapted to changing conditions and evolving understandings. Time and again, as Justice Holmes—another of the court’s great writers—urged, courts have interpreted it in light of “what this country has become,” and not what it was in 1791 or 1868.

If Justice Scalia had had his way, we would live in a nation where all affirmative action by the government was forbidden; where same-sex couples could be denied the right to marry and where the federal government could ignore their marriages even in states that do provide marriage equality; and where people with mild to moderate mental retardation could be executed (since in 1791, only those “commonly known as ‘idiots,’ enjoyed any special status under the law,” and those referred to as mere “imbeciles” could be put to death). Justice Scalia’s constitutional vision forced those of us who disagreed with him to sharpen our arguments; it did not, however, change the minds of a majority of his colleagues on many of the most important issues of his time.

Michael W. McConnell, Richard and Frances Mallery Professor of Law and Director of the Constitutional Law Center

Antonin Scalia was the most significant and influential Supreme Court Justice of the last 30 years, as William J. Brennan was of the 30 years before that. I had the privilege of knowing them both; I was student to Scalia, served as law clerk to Brennan, argued cases before both of them and counted both of them as friends.

By sheer force of intellect and personality, Scalia helped to move the court from a somewhat sloppy, results-oriented, center-left institution to a more intellectually rigorous center-right court that forefronts text and history over other modes of interpretation. In the course of this, he (along with a handful of other judges and academics) gave birth to the modern conservative legal movement. He was beloved by his friends, and not infrequently by his adversaries.

Every year when I teach constitutional law, liberal law students will put their hand up in class and, sheepishly, say something like, “I never thought I’d say this, but I agree with Scalia.” On separation of powers. On freedom of speech. On how to read the Constitution. His was not just a vote among nine on the Supreme Court. His was a mighty pen guided by a sharp analytical mind who cared deeply about our nation’s fundamental charter. He will be missed.

One of the great ironies of Justice Scalia’s tenure on the court is that he constantly advocated a theory of originalism and judicial restraint while being the most activist justice if not in history, at least during his 30-year reign as the icon of the far right. Oddly, it is striking how often the avowed originalist and textualist refused to follow the text of the Constitution. He voted to uphold the right to burn the American flag even though a textualist or originalist would have found nothing in the Constitution that barred the government from prohibiting this activity. His activist opinion that handed the 2000 election to George Bush, with little Constitutional support (and with 500,000 more Americans voting across the nation for Al Gore), was lauded by fellow conservative activist Judge Richard Posner, who conceded at the time that the wisdom of the decision would be judged by how history evaluated the Bush presidency. The judgment of history has not been kind.

Posner later denounced the “incoherence of Antonin Scalia,” noting that if Scalia had applied his self-described judicial philosophy of not overturning the decisions of democratically elected legislators absent a clear constitutional mandate, he would have voted to uphold state legislative restrictions on gun ownership rather than striking them down as he did in District of Columbia v. Heller. Scalia, the self-proclaimed textualist, was only too happy to jettison the inconvenient text of the Second Amendment referring to a “well-regulated militia.” Scalia later wrote a book to defend his judicial philosophy in the wake of the heavily criticized Heller decision creating an individual right to keep (and bear?) arms. Posner ended his review of the book with this unstinting verdict: “Reading Law is Scalia’s response to the criticism. It is unconvincing.”

The great question that may never be adequately resolved is whether Scalia believed that he acted pursuant to a philosophy of judicial restraint and, perhaps blinded by his intense political ideology, simply failed to see that he did not, or whether he recognized that the espousal of this philosophy would enable him to try to straitjacket his opponents, while using his undoubted literary gifts to himself wriggle out of the constraints to achieve his own activist goals. One might think that he must have been intelligent enough to see how frequently he departed from his own judicial philosophy, but the capacity of ideology to foster self-delusion cannot be underestimated.

Barton H. (“Buzz”) Thompson, Jr., Robert E. Paradise Professor of Natural Resources Law and Perry L. McCarty Director of the Stanford Woods Institute for the Environment

With the death of Associate Justice Antonin Scalia, the Supreme Court is a diminished institution. Although some might conclude from his many dissents that Scalia spent most of his time on the Court fighting losing battles, Scalia in fact had an exceptional influence on both the Court’s jurisprudence and its process. Through his questions from the bench and his powerful and often scathing opinions, Scalia helped influence the way in which justices and counsel talked about the issues in front of them—even when he was on the losing side. This is perhaps best seen in his adherence to originalism and its close cousin of textualism. While Scalia did not always convince others of his constitutional and statutory interpretations, he got people talking and thinking about words in a way that once seemed to be going out of style.

Scalia also influenced the essential workings of the Court. Prior to his ascendancy to the Court, oral arguments were often relatively staid events. Scalia changed that and, although some have suggested that the members of the Court are now too active in their oral arguments, the Court today has more dynamic and enlightening arguments than before. And those arguments can lead to better decisions and opinions. More generally, the Supreme Court often benefits from having strong intellects on both sides of an issue. Scalia often provided that intellect.

Scalia often came under attack for his conservative views. In some cases, his obvious political conservatism readily showed through. But it is worth emphasizing that his conservatism on the bench was typically more juristic than political. Scalia strongly believed that the role of justices was to interpret, not legislate, and that, in his view, lay in originalism and textualism. Where Scalia’s jurisprudential philosophy led to more liberal political results, he often followed, to his great credit as a justice. One of the best examples was his strong defense of the Sixth Amendment rights of confrontation and jury trial. Given his jurisprudential views, Scalia also was not hesitant to criticize Congress for vague and ambiguous criminal laws that could not provide clarity in what is criminal and what is not.

A highly influential and ultimately honest jurist with a biting and unforgettable writing style, Scalia will be missed.

Justice Scalia transformed the language of constitutional law. The florid rhetoric of his opinions, especially his dissents, addressed not only his fellow justices and lower courts but also a constituency within the nation. His interpretive theory of originalism reached out and captured that nation. As scholars have observed, Justice Scalia adopted a brand of constitutional interpretation that was influenced by New Criticism, an interpretive method akin to that practiced by his father, who taught romance languages at Brooklyn College. Under the tenets of New Criticism, a poem (or other literary object) should be analyzed from within the four corners of the text. As William Wimsatt and Monroe Beardsley argued in their 1954 essay, “The Intentional Fallacy,” the success of such a work cannot and should not be judged by the intentions or biography of the author.

Justice Scalia brought a similar contribution to constitutional interpretation. Rather than championing a version of originalism that depended on the Founders’ intent in composing the document, he relied on the “original public meaning” of the document. Resting interpretation on original public meaning is arguably more democratically legitimate, as it relies on the ratifiers’ understanding of the Constitution rather than a secret intention obvious only to one of the authors. Original public meaning originalism also echoes other techniques of New Criticism, such as focusing on formal structures and correspondences within the text and on dictionary definitions of various terms.

Not only did Justice Scalia transform how many in the nation read constitutional language, but he also changed how constitutional decisions—and dissents—are written. Especially when expressing disagreement about the conclusions that a majority or plurality had reached, Justice Scalia tended to alight upon a catchy phrase that encapsulated his resistance, one that would be hard even for opponents to forget. He also tended to maximize the extent to which the decision at hand would have dire consequences for the nation.

His opinion concurring only in the judgment in NLRB v. Canning, the 2014 recess appointments case, exemplifies these rhetorical techniques. In the final paragraph, he speaks of the “real tragedy of today’s decision” as pertaining not simply to the constitutional question at issue in the case but as more broadly involving “the damage done to our separation-of-powers jurisprudence.” This damage he encapsulated as an “adverse-possession theory of executive power.” Anyone reading these words who had had their own trepidations about the majority opinion would feel alarm at the seemingly vast consequences of the decision and at the same time find a hook for resistance against presidential encroachment upon the other branches. Justice Scalia thereby galvanized many in the nation to weigh in and hold views on constitutional issues.

Hank Greely, Deane F. and Kate Edelman Johnson Professor of Law and Director of the Center for Law and the Biosciences

Prophet or politician? Many memorable Supreme Court justices have played one of these two roles, either providing a voice for others to rally around or crafting positions that will get five votes. Justice Scalia played the prophet for nearly 30 years with brilliance, biting wit and blazing prose. He may have been, with Justices Holmes and Jackson, one of the three best writers in the Court’s history. He was not, however, the politician; indeed, he may have driven away more votes than he pulled into any given opinion. There was never a Scalia court but instead a Court pushed and prodded, or rebuked and scolded, by Justice Scalia.

The power of his pen means he will be quoted, cited, read and remembered for many years. In some areas, particularly the Sixth Amendment and possibly the Second, the new directions he gave constitutional law will survive. But in bigger ways, I think his efforts, like those of many prophets, will come to naught. His approach to constitutional interpretation is losing force at the Court, undone, in spite of his best efforts, by the desire of most justices to reach practical results in spite of mismatches between the literal meanings of ancient words and a changed world. And on some of the issues he cared most deeply about, he was on the wrong side of history’s ratchet. It is hard for me to imagine Obergefell, once announced, being overturned. His powerful words will still inspire some students, lawyers and judges, but I suspect his influence will continue to fade.

One last, personal, note. Justice Scalia wrote many opinions on many issues. His opinions have made me cheer, boo, laugh, groan and go “tsk tsk.” Only one of them made me genuinely angry. In December 2000 the Supreme Court, by a five-to-four vote, stayed the recount of Presidential votes ordered by the Florida Supreme Court. Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissented from the order for a stay. Justice Scalia issued a concurrence in order to respond to the dissent. In it he defended the position that counting votes, in our democracy, could cause an irreparable injury. I thought then, and think now, that his position was both wrong and unprincipled (even though I now believe that George Bush would most likely have won a Florida recount). But five justices voted for that stay; only Justice Scalia had the guts to defend it. He was a big personality with strong views, strenuously argued. He made the Supreme Court livelier, more colorful and more interesting. And he wrote really well. For all that, I am grateful.

Brian Wolfman, Professor of the Practice of Law and Co-Director of the Supreme Court Litigation Clinic

Many observers of the Supreme Court will tell you that Antonin Scalia was the most important Justice of the last three decades and a key figure in the history of American law.

But as a litigator in trial and appellate courts – including in the Supreme Court – I’m interested in Justice Scalia’s profound effect on how we practice law. Many of the hundreds of decisions he penned have been influential, and so they necessarily have become the building blocks—or the stumbling blocks—for our arguments.

But Justice Scalia affected my practice—and the practices of a couple generations of lawyers—in a more profound way. Because of Justice Scalia’s approach to the interpretation of legal texts, particularly (but not only) statutory texts, all of us were forced to shift how we construct legal arguments.

Put another way, almost every brief I write has Justice Scalia’s fingerprints on it.

Justice Scalia insisted that, in deriving the meaning of a congressional enactment, judges must focus on the words themselves and a narrow set of tools used to derive the meaning of those words—and not broader understandings of statutory purpose lacking a tight nexus with the text. Because of Justice Scalia, more than anyone else, textualism has become the dominant mode of statutory interpretation in the federal courts, and every sensible litigator must account for this when crafting her arguments.

When I present a statutory construction problem to students, they always start (and sometimes end) with the text. They have trouble even thinking about the problem any other way, which underscores Justice Scalia’s influence.

As in many spheres he influenced, Justice Scalia’s efforts to change how we interpret statutes were not entirely successful. For instance, his unswerving work to eradicate use of legislative history in deriving statutory meaning has not triumphed (though it has made great inroads).

But if you doubt Justice Scalia’s impact in this regard, just go back and read some major statutory construction cases from the generation before he joined the court in 1986—with their heavy reliance on statutory purpose and history, and sometimes only a nod to the text—and you’ll see what I mean.

William B. Gould IV, Charles A. Beardsley Professor of Law, Emeritus, and Former Chairman of the National Labor Relations Board

The death of any human being is always cause for sorrow. Moreover Justice Scalia was unusual—a man of considerable intellect who used it to frequently dominate the give and take of oral argument at the Supreme Court. But make no mistake about it: His mode of interpretation, be it of statutes or constitution, almost invariably harmed the most vulnerable who came to the courts seeking redress for their claims.

Justice Scalia’s position was one of near unrelenting hostility to the victims of discrimination. Though he authored a unanimous opinion supporting a prohibition of same-sex harassment, his opposition to the court’s 2015 view that gays have a constitutional right to marry was so obdurate that his intemperate criticism of Justice Kennedy went far beyond the bounds of judicial civility. Perhaps even more revealing was his series of votes in 1989 providing such a cramped view of job discrimination law that Congress, Republicans as well as Democrats, saw fit to reverse them—first through the Civil Rights Act of 1991 and then with the Lily Ledbetter Fair Pay Act of 2009. He adopted the same posture in imposing difficult burdens of proof on plaintiffs in both age and national origin discrimination cases. And without exception, he weighed in against affirmative action.

In another area sure to attract more attention from Congress in the future, Justice Scalia used the Federal Arbitration Act of 1925 to impose employer-devised arbitration procedures against individual employees—and to deprive the latter of any leverage through the denial of class actions to such employees. (It is generally financially prohibitive for the worker to sue alone without a group of similarly situated workers.) In the Concepcion decision, he wrote for a 5-4 majority to deny states the ability to condition such arbitration on the availability of class actions for workers. Scalia reasoned that this arbitration system, which has been bogged down with law and lawyers, would be deprived of its informality if the little guy had leverage. The Scalia opinion bore little relationship to the real world employment relationship.

Regrettably, Justice Scalia was inconsistent when his own desire to achieve the end result demanded inconsistency. In 1991 he wrote a balanced concurring opinion concluding that public employee unions could charge non-member dissenters for dues under a so-called fair share system (they had already had their chance to have no union, a different union or different leaders under a majority rule system), concluding that the charge of dues for services like wages or other conditions of employment are lawful when the union was obliged to bargain through its duty of fair representation, which it owes to all employees, union and non-union. Otherwise workers would have an incentive to be non-union because they could get the same services as union members for no dues. But in 1991 he was fending off what appeared to be a more ambitious opinion by Justice Blackmun. This year, when a new group of conservative judicial activists led by Justice Alito could scarcely contain their desire to reverse more than a half-century of judicial precedent , Justice Scalia joined in an oral argument to suggest that all dues were for political objectives and thus impermissible. To charge them would, therefore, said the group of five, violate non-member First Amendment rights. So much for 1991, when now in 2016 the votes were there to cripple the labor movement. (This case didn’t issue before Scalia’s death.)

An abiding theme of Justice Scalia was his view that he was required to be limited by original intent in the Constitution—a document written by many slaveholders and proponents of slave power. One thing is clear: Brown v. Board of Education, the greatest constitutional decision of this generation and many preceding it, would not have passed muster with his original intent. Not only were the races separate at the time of the great post-War of the Rebellion amendments, but public education had yet to achieve national endorsement. Here also Justice Scalia would have come up short on the wrong side of history in dissent if he had been on the court in 1954. At least we can be grateful that he wasn’t there then. But he was able to do much damage after that.

Jeffrey Fisher, Professor of Law and Co-Director of the Stanford Supreme Court Litigation Clinic

Justice Scalia was a great man who had an incredible influence on our law. I’ve done 28 Supreme Court arguments, and every one has been with him on the bench. And while every lawyer who argues before the Court thinks about preparing for all of the justices, I think it’s fair to say that Justice Scalia is at the forefront in your mind—how you’ll deal with his questions.

Justice Scalia understood the Constitution, and the Sixth Amendment in particular, as a document really meant to restrain the government. That played out in certain ways liberals might not like on the civil side, but in ways that benefited criminal defendants.

One of the things I love about teaching intellectual property is that disputes rarely fall along traditional party lines. I don’t know whether Justice Scalia had a unified theory of IP—he called IP one of the “blind sides” that he “always regretted.” But a number of his IP opinions have made it into the casebooks, and liberals who vehemently disagree with him on social issues often found themselves siding with him on IP.

Justice Scalia was the first Supreme Court Justice to write about the problem of “patent trolls,” and his opinions made it easier to challenge patent validity and expanded the safe harbor for patent infringement for generic drug companies. He also made it harder to obtain trade dress protection for product designs like children’s clothes, and another opinion explained that the public has a right to copy without attribution once a copyright has expired. He vigorously dissented when the Court held Aereo’s streaming TV service to be infringing in 2014, arguing that the majority’s imprecise test would take “years, perhaps decades” to sort out and analogizing the “dire predictions” about Aereo to similar predictions about the VCR.

Justice Scalia was certainly not uniformly opposed to IP rightsholders. He voted with the majority to allow copyright term extensions; he joined a dissent that would have given pharmaceutical patentees broad immunity from antitrust law; and many commentators believe he switched his vote in the 2010 Bilski case to prevent a broad ruling against business-method patents. But the opinions he chose to write seemed to reflect a belief that allowing IP rights to be recognized too easily or asserted too broadly could harm competition, consumers, and innovation.

Given how rarely IP decisions have 5-4 votes, I don’t expect any major changes in the IP directions the Court has taken. In fact, the Court might prefer IP cases over more political issues for exactly this reason. But liberals who favor a minimalist approach to IP grounded in free competition and consumer rights shouldn’t forget that have lost a jurist who was often on their side.

We join in praise and thanksgiving for the Divine blessing of Antonin Scalia. We pray peace and rest for his after-earthly death new home in heaven – God Bless, Retired Prof. of Law Alfred A. Porro,Jr.

Name Withheld

February 17, 2016 at 1:47 pm

Our country will be better off without Justice Scalia on the court. I agree with the writers above — he was wrong about originalism and textualism. These interpretations have taken our legal system in the wrong direction and will harm our nation for decades to come. Scalia not politically motivated? Ha! Then, of course, there is the glaring lack of charity in his heart for minorities and the under-privileged. Citizen’s United was a travesty of justice. Justice Scalia’s political fingerprints on that piece of fire-starter will, hopefully, not live on much longer in infamy.

In future, our President and Senate should be much more careful in their selection of jurists for this court. Scalia was a big mistake.

Jaime L. Manzano

February 17, 2016 at 2:16 pm

The death of Justice Antonin Scalia calls on the nation to think, accept, even understand, its Constitutional construct. As a nation, it may be time to revisit, perhaps modify, and even return selectively, to the basic design and principles of the document – sort of like a wine connoisseur returning to the true faith in a well balanced Bordeaux. By that, I mean where governmental powers are limited, and where power is shared and exercised through an agreement with its component parts, i.e., the states, individuals, and a higher order, that is, God, or Nature.

More speculatively, I wonder whether it may be time to entertain extending membership to other willing nations? The earlier move to organize a League of Nations, or the United Natiions, may have been untimely, a leap too far in terms of change. Like our present struggle with our own founding document, some of the proposals may have been an overreach, and deserve to be reviewed and corrected. It isn’t too early to analyze the past in search for a more perfect union, not only within the country, but in its relationships with other sovereignties.

Internally, we have accepted amendments to the Constitution, one – the Civil War – even violently. The amendment process, albeit imperfect, was designed to allow us to adjust, and preserve, the union as an alternative to destroying it. When Congress listens to its constituents, changes in law are agreed to, some even with good will. The Constitution provides the mechanism to make changes to itself. Now could be the time to use it thoughtfully. Reasoned, uncomplicated, and agreed to steps may now be practicable to acclimate the body politic to consider, and accept changes. Perhaps by adhering more closely to the words of the Constitution, and less to an amplification of their imagined meaning, as Justice Scalia wished, the nation could strengthen its legal construct. Choosing the plane reading of words in a way that the ordinary citizen can interpret and understand them was his preference. And, while “one’s reach should exceed one’s grasp else what’s heaven for” – it ought not be excessive, that is, to enter the realm beyond custom and nature “where angels fear to tread.”

The history of the nation reflects its reaching beyond its grasp, succeeding and failing along the way.. The very creation of these United States was an overreach. Its serendipitous expansion defined its borders, be it by treaty, population, or the force of arms. Today, its reach extends over oceans, even up to 200 miles off-shore of other nations. Its sovereign reach affects adjacent islands, contiguous nations, and more. International agreements defining relations with foreign nations proliferate. The evolution of the nation’s reach continues, embarking on troubled, and uncharted, waters. The future beckons beyond our grasp, as we seek an earthly heaven.

By itself, making the Constitution a more perfect internal ruling document, is a task of Herculean ambition. Extending its reach to other nations, indeed, the world, sounds foolhardy, even impossible. But our aspirations to form a more perfect union, and to achieve the promise of life, liberty, and the pursuit of happiness, is in our nature. It may even be that of other nations. Perhaps it is why the United States came into being, how other nations will develop, and how human society on this earth will survive.

James Luce

February 17, 2016 at 10:39 pm

What is missing from this discussion is that “originalism” as practiced by Justice Scalia was in fact a result-oriented strategy to justify and support his fundamentally misogynistic, racist, and homophobic beliefs. The original authors of the Constitution believed that women were “weak vessels” incapable of intelligent contribution to society. They believed that black people and Native Americans were inferior humans or perhaps not even human. They believed that homosexuality was a sin or (in the case of the Deists among them) an abomination. Of course, Justice Scalia was an “originalist”…This fit perfectly into his view of the world and the white Man’s place in it.
Further proof of his hypocrisy is that Justice Scalia refused to look at legislative intent of Congress, but had no problem examining the intentions of the authors of the Constitution. That is, he confined his analysis of the law to the original authors’ motivations and understandings, all of which were 18th-century…largely ignorant of science and cultural diversity. If the intentions of the original authors are important for a proper understanding of the Constitution, why are not the intentions of modern day drafters of law equally useful and important? The answer is that modern day ideas were abhorrent to Justice Scalia.
Finally, his famous “wit” was simply a symptom of the fact that he was an arrogant bully sitting in a courtroom rather wandering the schoolyard. The scariest aspect of Justice Scalia is that his meanness of his opinions will live on for decades.
James Luce
Yale, ’66; Santa Clara Law, ‘71

PAUL ANGULO

David C. Burgess

February 26, 2016 at 1:19 pm

What a fascinating array of perspectives:

“Justice Scalia’s constitutional vision forced those of us who disagreed with him to sharpen our arguments; it did not, however, change the minds of a majority of his colleagues on many of the most important issues of his time.” Pamela S. Karlan

“The most significant and influential Supreme Court Justice of the last 30 years.” Michael W. McConnell

“The most activist justice if not in history, at least during his 30-year reign as the icon of the far right.” John J. Donohue III